Court finds Virginia school's transgender bathroom rule discriminatory
Posted April 19
Updated April 20
RICHMOND, Va. — A policy barring a transgender student from using the boys' restrooms at his Virginia high school is discriminatory, a federal appeals court ruled Tuesday.
In a case closely watched by public schools and transgender-rights activists across the country, a three-judge panel of the 4th U.S. Circuit Court of Appeals overturned a federal judge's decision rejecting Gloucester High School student Gavin Grimm's sex discrimination claim and ordered the lower court to hear the case.
Transgender rights have become the latest civil rights battleground issue across the country after the Supreme Court laid to rest the gay marriage debate when it ruled last year that same-sex couples had the right to marry. The issue was thrust further into public consciousness in 2015 when Olympic athlete and reality TV star Bruce Jenner disclosed his transgender identity and name change to Caitlyn Jenner.
North Carolina, which faces a lawsuit challenging a new state law requiring transgender people to use the public bathroom that corresponds to the sex listed on their birth certificate, is part of the 4th Circuit and must follow rulings issued by the court. The sweeping law, commonly referred to as House Bill 2, also barred cities from passing anti-discrimination ordinances that provide protections for gay and transgender people, which has prompted a national backlash. Businesses and politicians have announced boycotts of North Carolina, and legal challenges ensure that the wedge issue will dominate Republican Gov. Pat McCrory's re-election campaign.
"We have to evaluate the impact of this court ruling on existing legislation, on existing policy that we have throughout North Carolina," McCrory said. "The Federal courts have taken on this issue with pretty aggressive action and it will cause quite a stir in this nation on all sides."
McCrory disagreed with the ruling, which he called "pretty aggressive action," and said his lawyers were reviewing it. Schools should be allowed to set their own bathroom policies, he said, including making special arrangements as needed for transgender students.
"This Virginia ruling has major ramifications on the ever-changing and very fast changing of cultural norms, especially in our public school systems," he said. "This is going to be a very interesting, not just a North Carolina discussion, this is now even more of a national discussion."
Senate President Pro Tem Phil Berger angrily denounced the ruling, saying it would complete a "radical social re-engineering of our society by forcing middle school-aged girls to share school locker rooms with boys."
"House Bill 2 was our effort to stop this insanity, and I hope this proves the bathroom safety bill has nothing to do with discrimination and everything to do with protecting women's privacy and keeping men out of girls' bathrooms," Berger, R-Rockingham, said in a statement.
House Speaker Tim Moore was more measured in his response: "The panel's reasoning is unsound at best, and this argument is far from over in the courts and in the court of public opinion."
Meanwhile, Burley Mitchell, a former chief justice of the North Carolina Supreme Court, said he thinks the ruling will have limited impact.
"The decision doesn’t appear to be based on the Constitution. Instead, it’s based on an interpretation of Title IX," Mitchell said, referring to the federal education gender-equity law. "At most, the ruling would apply to public schools."
In a statement, the North Carolina Values Coalition claimed that the court ruling ignored the clear language of Title IX "and instead substituted it's own definition of sex for that of the U.S. Congress."
"Students from all walks of life find it deeply humiliating and offensive to be forced to share intimate facilities with the opposite sex, but unfortunately the Court did not consider these harms or the voices of these children," the statement said.
North Carolina lawmakers have signaled that they have no intention of repealing the bathroom law when they reconvene for their 2016 legislative session next week, and McCrory is more focused on reinstating the rights of workers to sue for job discrimination in state court, which was a protection wiped out by House Bill 2.
Chris Brook, legal director for the North Carolina chapter of the American Civil Liberties Union, which has challenged House Bill 2 in court, said the 4th Circuit ruling can only help their case.
"It puts a lot of wind at our back. It underlines the argument that we've been making from the outset, which is that recipients of federal education funds can't be discriminating against transgender students," Brook said. "We are going to be holding this opinion up high when we go into court to challenge this portion of House Bill 2."
Chris Sgro, executive director of LGBT advocacy group Equality NC, said the ruling "makes clear that anti-transgender legislation like North Carolina's House Bill 2 are unconstitutional and misguided," and he again called for it to be repealed.
Grimm, 16, was born female but identifies as male. He was allowed to use the boys' restrooms at the school for several weeks in 2014. But after some parents complained, the school board adopted a policy requiring students to use either the restroom that corresponds with their biological gender or a private, single-stall restroom.
Grimm called the policy stigmatizing. School officials said the policy respects the privacy of all students.
Grimm's parents helped him legally change his name, and a psychologist diagnosed him with gender dysphoria, characterized by stress stemming from conflict between one's gender identity and assigned sex at birth. Grimm began hormone treatment to deepen his voice and give him a more masculine appearance.
The U.S. Justice Department filed a "statement of interest" in Grimm's case in July, declaring that failure to allow transgender students to use the restroom that corresponds with their gender identity amounts to sex discrimination.
In a dissenting opinion, Judge Paul Niemeyer said the court's opinion "overrules custom, culture, and the very demands inherent in human nature for privacy and safety."
"This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes," Niemeyer wrote.
Other states in the 4th Circuit are Maryland, West Virginia and South Carolina.